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Issue

Volume 25, Issue 1 — January 1995

Articles

Editors' Summary: As environmental regulation at the federal level has grown increasingly burdensome on states and industry, nearly half of the states, mainly in the South and intermountain West, have responded by preventing their own environmental agencies from promulgating environmental regulations that are more stringent than federal baselines. The author examines many of these restrictions on state regulation, and discusses their causes and potential effects. The author concludes that these states' abdication of their freedom to legislate and regulate innovatively is a strong indicator that in the absense of strong federal regulation, many states would not be likely to regulate the environment to the degree the federal government currently does.

Dialogue

Congress will be returning to Washington about the time this Dialogue is published. The Superfund1 reauthorization bill that did not pass in the last Congress is the natural starting point for the renewed discussion in this Congress of Superfund's reauthorization. This Dialogue is about that upcoming reauthorization and has two purposes.

The first purpose is to educate the public and the environmental bar about some of the fundamental problems in the small print of S. 1834 and H.R. 4916, the most recent Senate and House bills.2 The bills are complex; the Senate version runs approximately 500 pages, the House version runs 300 pages. Many of the assumptions about the proposed legislation's content and effect are incorrect. Part of the problem is that the legislation worsened as it went through the committee process. The committee process produced legislation that if enacted, will increase costs and complexity, decrease fairness, and slow cleanups.

Congress initially intended the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund)1 to provide a statutory framework for addressing what Congress believed to be a manageable number of sites presenting significant risks to human health and the environment.2 CERCLA's liability scheme, however, has had an unanticipated chilling effect on the willingness of parties to purchase or otherwise use contaminated sites throughout the country.3

In 1989, the U.S. Environmental Protection Agency (EPA) issued guidance that outlined the context within which EPA would consider providing prospective purchasers of contaminated property with covenants not to sue under CERCLA, i.e., prospective purchaser agreements.4 This Dialogue describes EPA's use of prospective purchaser agreements and discusses ways in which the Agency's approach could be improved. It also provides insight into some of the practical considerations relevant to negotiating such agreements.

The 1990s mark the end of an era when pitched legislative battles can lead to either sound or timely public policy. Rather, the formulation of consensus by a critical mass of private-sector stakeholders is the only way to achieve the timely reauthorization of Superfund and may be the best (if not the only) way to break the gridlock that paralyzes other legislative debates. The Superfund consensus was achieved because of the despair over the current state of the program shared by the full spectrum of private-sector stakeholders and as a direct result of a negotiation process with attributes that should be duplicated in other contexts. Several forces are at work to destroy this consensus, and these forces must be curbed. This Dialogue begins with an analysis of the political context in which the "deal of the century" was forged. It then turns to an examination of the NCS process and its implications for future consensus-building. It reviews how the consensus legislation would deal with the two most important issues in the reauthorization debate—Superfund's cleanup standards and liability system. Lastly, it discusses the options available to the 104th Congress as it faces the December 1995 deadline.